Analysis

Clive ColemanLegal correspondent, BBC News

Today's judgement is pretty stark. On the critical issue of whether whole-life terms were "reducible" and offered prisoners some "hope" and "possibility" of release in exceptional circumstances, the Court of Appeal flatly disagreed with the Grand Chamber of the ECHR.

The nub of the argument concerned the only current means under domestic law for a whole-life term to be reduced. It can only happen if the justice secretary is satisfied that exceptional circumstances exist which can justify a prisoner's release on compassionate grounds.

Existing guidance specifies that the prisoner should be suffering from a terminal illness and that death is likely to occur very shortly. The ECHR thought it was unclear whether the justice secretary would apply this restrictive policy. It didn't regard release purely to die in a hospice or at home as sufficient to represent a "prospect of release", and so represented a breach of Article 3 of the European Convention on Human Rights.

The Court of Appeal disagreed. It explained that the justice secretary cannot be restrictive, must take into account all exceptional circumstances relevant to the release of the prisoner on compassionate grounds, and must interpret "compassionate grounds" in accordance with human rights law. The court concluded that meant that the law in England and Wales was clear and did offer both "hope" and the "possibility" of release.

The UK courts have disagreed with Strasbourg before, but rarely in such a clear and unvarnished way. Under the Human Rights Act domestic courts are bound to "take into account" ECHR rulings. Some believe that means, ultimately, "must follow". Today's ruling perhaps marks the start of a far more robust dialogue between the ECHR and our domestic courts.

Under current law, whole-life tariffs can be given for "exceptionally" serious offences. They prevent offenders from ever being eligible for a parole review or release, unless at the discretion of the justice secretary.

In July the ECHR ruled whole-life sentences had to have the possibility of release and, to be compatible with the European Convention on Human Rights, there should be some way of having a sentence reviewed after 25 years.

That ruling followed a successful appeal by convicted murderers Jeremy Bamber, Douglas Vinter and Peter Moore.

In the latest Court of Appeal ruling, the panel of five judges found that the Strasbourg court had been wrong when it reached a conclusion that the law of England and Wales did not clearly provide the possibility that a whole-life prison term could ever be reduced.

They said a power of review arose if there were "exceptional circumstances" whereby the offender could appeal to the secretary of state.

"In our judgement the law of England and Wales therefore does provide to an offender 'hope' or the 'possibility' of release in exceptional circumstances which render the just punishment originally imposed no longer justifiable," Lord Chief Justice Lord Thomas said.

Lord Thomas said some crimes were "so heinous" that Parliament was entitled to allow whole-life orders "entirely compatibly" with the European Convention on Human Rights.

"Judges should therefore continue as they have done to impose whole-life orders in those rare and exceptional cases," he said.

Newell's lawyers had challenged his whole-life order for murdering child killer Subhan Anwar while already in prison for another killing. Lord Thomas dismissed the appeal, saying the murder had been "premeditated and involved the use of an improvised weapon".

Murderers Ian McLoughlin (l) and Lee Newell (r)

Ian McLoughlin killed Graham Buck, 66, in Hertfordshire in 2012, while on prison day-release from another murder sentence. Mr Buck had gone to the aid of a neighbour who was being burgled.

Ruling on the McLoughlin case, the Court of Appeal said the sentencing judge had been "in error" in thinking he did not have the power to make a whole-life order in the wake of the Strasbourg court's ruling.

What is a whole-life tariff?

Offenders who receive a whole-life tariff cannot be released other than at the discretion of the justice secretary on compassionate grounds - for example, if they are terminally ill or seriously incapacitated

They are not eligible for a parole review or release

However, prisoners can have their sentence reduced on appeal

The sentence is reserved for offenders judged to be the most dangerous to society

53 people are currently serving whole-life tariffs

These include the Yorkshire Ripper Peter Sutcliffe and Moors Murderer Ian Brady

Serial killer Rosemary West is the only woman currently serving a whole-life sentence

The most recent murderers to receive the sentence are Mark Bridger, who killed five-year-old April Jones, and Dale Cregan, who murdered two police officers

Lord Thomas said the seriousness of the case - which had been referred to the Court of Appeal by Attorney General Dominic Grieve - was "exceptionally high" and 40 years was unduly lenient.

Reacting to Tuesday's ruling, Mr Grieve said he was "pleased".

He said he had not thought the Strasbourg court said anything "which prevented our courts from handing down whole-life terms in the most serious cases".

"Today's judgement gives the clarity our judges need when they are considering sentencing cases like this in the future," he said.

Justice Secretary Chris Grayling also welcomed the decision as upholding the law that the UK Parliament had passed.

Shadow justice secretary Sadiq Khan said: "Judges should be able to lock up for life those guilty of the most horrible crimes and it was a Labour government that gave them this power.

"We now need the government to make a considered response to the Strasbourg judgement and Labour is willing to work with ministers to get the right result."

However, Simon Creighton, solicitor for convicted murderer Douglas Vinter, called the decision "troubling" and said it was "fundamental" that prison sentences had "some form of rehabilitation and redemption" built in. His client was "not expecting" to be released but wanted "something to work towards", he added.

There are currently 53 prisoners on whole-life terms in England and Wales, including Moors Murderer Ian Brady and serial killer Rosemary West.

In December the judge in the Lee Rigby murder trial said he would wait for the decision by the Court of Appeal before passing sentence on Michael Adebolajo and Michael Adebowale, who were convicted in December of killing Fusilier Rigby in Woolwich, south-east London, in May last year.

The killers will be sentenced at the Old Bailey on 26 February at 14:00 GMT, a Judicial Office spokeswoman has confirmed.

Comments

Comment number 1186.

Bastiat18th February 2014 - 23:12

1182.MartinRequiring people provide for themselves, rather than having their victims be forced to pay for them is no slave labour. They're free not to work of course, and can rely on charity. The same as the rest of us must, unless you advocate scrounging as a "right".

Comment number 1184.

no2pc18th February 2014 - 23:05

Harry HindsightHow does the case being "sufficiently publicised" reduce the chance of the wrong man being convicted ??The death penalty should only be used in some murder cases where the evidence is irrefutable, for example DNA evidence. The cost of appeals therefore would not run into "millions" or anything like that, if the criminal lived to a reasonable age would probably result in a saving

Comment number 1180.

ambrosia18th February 2014 - 22:49

1173. hadenoughalreadyCriminals tend to have lower IQs. But you get smarter criminals in countries with low social mobility .Clever but poorer kids see crime as the only way up. Eg, drug barons in Congo. UK’s soc-mob is EU’s worst so could affect our inmate IQ. Smart kids from less affluent families in Germany have 8x the chance to do well as in UK so less likely to do crime.

Comment number 1179.

SJH18th February 2014 - 22:47

1. You Aint Seen Me Right

Because they are perverse and take great delight in offending the vast majority of the population. They are like the Nick Clegg or the Labour party who love nothing more than savaging the hand that feeds them and the more public money they get the more perverse they become.

Comment number 1178.

UKIPs Sounding Board18th February 2014 - 22:46

@no2pc> The death penalty [...] would save money

Oh dear. Do you have any idea how much the govt would have to spend before it ends up executing someone? The cost of appeals and ensuring the case is sufficiently publicised so as to reduce the likelihood that the wrong man was convicted would run well into the millions. No money would be saved.

Comment number 1176.

mahatmacoat18th February 2014 - 22:36

When you murder someone there life is gone there for you forfeit your own life and human rights and your life is gone, in the Bible it says "a life for a life" All murderers should spend the rest of there life behind bars or bring back the death penalty lethal injections that way it will be a life for a life and to those who don't agree wait till a loved one is murdered and see how you feel then.

Comment number 1175.

no2pc18th February 2014 - 22:33

The death penalty is not appropriate for every murder case but is certainly the correct sentence for some, would save money, and get rid of a human that will never do anything other than commit more serious crime

Comment number 1171.

SJH18th February 2014 - 22:20

Good. Now that the Court of Appeal have finally has shown some guts and rejected those legally unqualified, politically correct imbeciles in Strasbourg they can move on to something a little more tricky like throwing out the illegal immigrants who have been clinging on by making spurious Human Rights applications.

Comment number 1170.

MrWhibbits18th February 2014 - 22:16

Whole life should too mean execution for rapists, murderers, paedophiles and others that 'moralistically systematically planned or otherwise' destroyed the lives of so many as well as devastating that of their victims.

Shoot, hang or inject them - without a qualm I would and could do that to these people that see us as no more than their prey.

Comment number 1169.

The heir of Alfred18th February 2014 - 22:16

The problem we have is that unelected abusers are making laws. We have the right to elect our legislators and anyone who imposes laws on us without a mandate from the electorate is an abuser and a in my opinion a criminal. This applies to european comissioners, beaurocrats and judicary from the ECOHR.

Comment number 1168.

riff7718th February 2014 - 22:10

@1165 Sally

I'm not disagreeing with you, I'm not the one you have to convince.

Some years ago a large home improvement chain stopped ordering its garden furniture from Scottish prison workshops because of bad press that 1/ they were undercutting other suppliers 2/ not informing customers that the furniture was made by prisoners. Media and Public have to approve or it doesn't work well.

Comment number 1167.

STAY ON THE RIGHT-DONT GO LEFT18th February 2014 - 22:09

1164The ECHR is an odious institution, no amount of sanctimonious, pretentious, left wing propaganda will change that view(held by the majority)...any person of a liberal persuasion may have an high iq but they certainly lack common sense,as for the greens if delusion was a measure of iq they would certainly score high

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